Citation Nr: 0728776
Decision Date: 09/13/07 Archive Date: 09/25/07
DOCKET NO. 05-34 220 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Reno,
Nevada
THE ISSUE
Entitlement to service connection for low back disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Fadia Elia, Associate Counsel
INTRODUCTION
The veteran served on active duty from February 1987 to July
1996 with subsequent period of active duty for training from
June 14, 2003 to June 28, 2003.
This case is before the Board of Veterans' Appeals (Board) on
appeal from an August 2004 rating decision by a regional
office (RO) of the Department of Veterans Affairs (VA).
FINDING OF FACT
Lumbosacral strain with degenerative disk disease and
sciatica is attributable to service.
CONCLUSION OF LAW
Lumbosacral strain with degenerative disk disease and
sciatica was incurred in service. 38 U.S.C.A. §§ 101 (2),
101 (22)(A), 101 (24)(B), 1110, 5107; 38 C.F.R. §§ 3.1(d),
3.6(c), 3.2(h)(i), 3.102, 3.303 (2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Preliminary Matters
As a preliminary matter, the Board is required to address the
Veterans Claims Assistance Act of 2000 (VCAA) that became law
in November 2000. The VCAA provides, among other things,
that VA will make reasonable efforts to notify a claimant of
the relevant evidence necessary to substantiate a claim for
benefits under laws administered by VA. The VCAA also
requires the VA to assist a claimant in obtaining that
evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp.
2007); 38 C.F.R. § 3.159 (2006).
Recently, in Dingess/Hartman v. Nicholson, 19 Vet. App. 473
(2006), the Court of Appeals for Veterans Claims (Court) held
that VCAA notice requirements of 38 U.S.C.A. § 5103(a) and
38 C.F.R. § 3.159 (b) apply to all five elements of a service
connection claim which include: 1) veteran status; 2)
existence of a disability; 3) a connection between the
veteran's service and the disability; 4) degree of
disability; and 5) effective date of the disability.
In this case, the veteran has not been provided with the
Dingess v. Nicholson notice. Id. The RO will be responsible
for addressing any notice defect with respect to the rating
and effective date elements when effectuating the award.
In light of this favorable decision, any other VCAA violation
is harmless.
II. Factual Background
The veteran served on active duty for training from June 14,
2003 until June 28, 2003. On June 22, 2003, he was admitted
to the emergency room for an injury he sustained while
lifting concrete. He complained of lower back strain ongoing
for two days with pain radiating down his left leg. He was
diagnosed with sciatica.
The veteran has sought private medical care for the
disability he is claiming. In October 2004, Dr. P.N., the
veteran's orthopedic physician had diagnosed chronic lumbar
symptom/sciatica. Subsequently, Dr. P.N. ordered MRIs, which
were interpreted by the administering physician as indicative
of disk space narrowing and dessication. More particularly,
there was posterior left paramedian broad-based disk
protrusion with focal mass effect on the existing left lower
nerve root sleeve.
In December 2004 and January 2005, the veteran sought
epidural treatment for his ongoing pain. In the January 2005
procedure, he also obtained numerous diskographies on his
vertebral column. The surgeon ruled in lumbar diskogenic
mediated pain. It was reported that there had been ongoing
buttock and lower extremity pain since approximately June
2003.
In March 2005, Dr. P.N. issued an opinion based upon a review
of the diskographies and MRIs, as well as the service medical
record of the veteran's injury. Dr. P.N. stated that the
"current condition more likely than not is related to the in
service condition." He further opined: "Due to the fact
that the patient has very similar symptoms and [sic] it
appears that the patient almost assuredly had a disk
herniation at that time."
VA afforded the veteran an examination in July 2005. The
file was reviewed, a physical examination was conducted, and
X-rays were obtained. The examiner diagnosed sciatica/low
back pain with radicular complaints into the left leg without
hard neurologic deficit. The examiner opined that there was
a 50-50 probability that the veteran's low back pain was
"worsened" by the incident which the veteran describes of
having occurred in Korea in 2003. The examiner further
opined that the low back pain with left sided sciatica was
possibly due to abnormalities in the lumbar spine, but that
the aching pain in the veteran's back was due to
osteoarthritic changes which predated 2003. It was opined
that the degenerative changes involving the lower segments of
the lumbar spine had been present for at least 5 years in
that it takes that period of time in order to develop the
disc space narrowing.
III. Legal Criteria
Sevice connection may be established for disability resulting
from personal injury suffered or disease contracted in line
of duty, in the active military, naval, or air service,
during a period of war. 38 U.S.C.A. § 1110. The United
States will pay to any veteran thus disabled and who was
discharged or released under conditions other than
dishonorable from the period of service in which said injury
or disease was incurred, compensation as provided in this
subchapter. Id. In order to establish service connection
for a claimed disorder, the facts, shown by evidence, must
establish: (1) a current disability; (2) in-service
incurrence or aggravation of a disease or injury; and (3) a
nexus between the claimed in-service disease or injury and
the current disability.
The determination as to whether the requirements for service
connection are met is based on an analysis of all the
evidence of record and the evaluation of its credibility and
probative value. Baldwin v. West, 13 Vet. App. 1 (1999);
C.F.R. § 3.303(a). "When, after careful consideration of
all procurable and assembled data, a reasonable doubt arises
regarding service origin ... such doubt will be resolved in
favor of the claimant." 38 C.F.R. § 3.102.
Active military, naval, or air service is defined by statute
to include, among other things, any period of active duty for
training during which the individual concerned was disabled
or died from a disease or injury incurred or aggravated in
line of duty. See 38 U.S.C.A. § 101(2), 101(24); 38 C.F.R.
§ 3.1(d).
Certain evidentiay presumptions - such as the presumption of
sound condition at entrance to service, the presumption of
aggravation during service of preexisting diseases or
injuries which undergo an increase in severity during
service, and the presumption of service incurrence or
aggravation for certain diseases which manifest themselves to
a degree of disability of 10 percent or more within a
specified time after separation from service - are provided
by law to assist veterans in establishing service connection
for a disability or disabilities. 38 U.S.C.A. § 1111, 1112,
1153; 38 C.F.R. § 3.304 (b), 3.306 3.307, 3.309. The
advantages of these evidentiary presumptions do not extend to
those who claim service connection based on a period of
active duty for training or inactive duty training. Paulson
v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the
Board did not err in not applying presumptions of sound
condition and aggravation to appellant's claim where he
served only on active duty for training and had not
established any service-connected disabilities from that
period).
IV. Analysis
The record establishes that the claimant was injured while on
active duty for training. He is, thus, by statute, a
veteran, and entitled to compensation for any disability
resulting from that injury.
The veteran claims back pain with numbness and sharp pain
radiating down his legs as a result of the injury he suffered
when on active duty training. The service medical record, at
the time the injury occurred, as well as the veteran's
private medical record, and VA examination have diagnosed
sciatica.
In the course of treating the veteran over two years, his
private physician, Dr. P.N, ordered MRIs, epidurals, as well
as diskographies. He consulted with the physicians
administering the tests and with an orthopedic surgeon. Dr.
P.N. also reviewed the service medical record. His opinion
is that the veteran's disability is due to the injury the
veteran suffered in service. Dr. P.N. remarks that the
veteran has very similar symptoms as the ones he suffered
while in service post his injury, and that he "almost
assuredly had a disk herniation at that time." Dr. P.N.'s
opinion is based on extensive laboratory work as well as
physical examinations, and not a reiteration of the veteran's
thoughts.
The VA examiner opined that there was a "50-50 probability
that [the veteran's] low-back pain was worsened by the
incident which he describes of having occurred in Korea in
2003." Incidentally, as noted above, the "incident" is of
record.
The examiner further opines that the low-back pain with left
sided sciatica "is possibly due to the abnormalities in [the
veteran's] lumbar spine as noted on X-rays and MRI."
Finally, the examiner states that the aching pain of the
veteran's back "is due to the organic osteoarthritic changes
in the lumbar spine which predated 2003." The examiner's
comment, while possibly medically sound, nonetheless does not
affect his previous notation that such condition was, as
likely as not, made worse by an injury in service.
In this case, there is theoretical evidence that lumbar
pathology preexisted ACDUTRA (active duty for training).
However, nothing suggests that there was pain, limitation of
motion, or neurologic deficit prior to service. Based upon
the cumulative record, we conclude that the disability was
incurred in service. Lastly, the VA medical opinion is so
theoretically vague so as to place the onset of the disease
process during active duty.
In light of the fact that the examiner finds that the
veteran's condition was as likely as not worsened by service,
the veteran's condition would be compensable by law.
It is not staturorily relevant in this case whether the
injury caused or aggravated a pre-existing condition.
Because the veteran was injured while on active duty
training, he would be entitled to compensation regardless of
whether his condition pre-existed and was aggravated by
service, or whether its onset occurred in service. Under
either circumstance, a relationship has been established
between the current disability and the in-service injury.
The Board finds that the veteran's lumbosacral strain with
degenerative disk disease and sciatica is attributable to
service.
ORDER
Entilement to service connection for lumbosacral strain with
degenerative disk disease and sciatica is granted.
____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs